‘Shock and Awe’ as a War Crime:
International Criminal Liability Arising from Contemplated Tactics and Weapons which may be used in an Attack on Iraq
Duncan Currie LL.B. (Hons.) LL.M.
3 March, 2003

Table of Contents
Executive Summary	1
The Concept of ‘Shock and Awe’	4
War Crimes and Humanitarian Laws	5
War Crimes Under the ICC	5
Humanitarian Laws Under the Geneva Conventions	7
War Crimes Under the Geneva Conventions and Protocol I	8
Shock and Awe as War Crimes	9
Shock and Awe Under the Geneva Conventions and Protocol I	9
Geneva Convention	9
Protocol I	9
War Crimes Under the International Criminal Court	12
The Legality of Other Contemplated Weapons	12
The Likely Use of Depleted Uranium	12
The Practical Effects of Depleted Uranium (DU) on the Battlefield	12
The Legal Effects of The Use of Depleted Uranium (DU) on the Battlefield	14
The Contemplated Use of Chemical Weapons	16
The Possible use of Nuclear Weapons	17
Other Weapons	19
Liability for Acts Constituting War Crimes by United Kingdom and Australian Officials	20
Crimes Against Peace and Crimes of Aggression	20
Recourse for War Crimes	21

Executive Summary
Plans for the proposed invasion of Iraq contemplated by the United States, the United Kingdom and Australia are likely to include a massive initial attack using tactics described as ‘shock and awe’, according to leaked Pentagon documents.  The attack may involve hundreds of cruise missiles launched at Iraq on the first day of the war, so ”there will not be a safe place in Baghdad” and water, power and other systems necessary to sustain civilian populations will be disrupted.
The proposed tactics as described appear to disregard the ‘basic rule’ of humanitarian law that Parties to the conflict must distinguish between the civilian population and combatants and between civilian objects and military objectives. If implemented as described, these tactics could breach international humanitarian laws, which require that the civilian population not be the object of attack and prohibit indiscriminate attacks and acts intended to spread terror among the civilian population, in order to undermine morale, as well as prohibit attacks on drinking water installations and supplies for the purpose of denying them for their sustenance value to the civilian population or to the adverse Party.
The use of ‘shock and awe’ tactics could also give rise to liability for war crimes under the Fourth Geneva Convention and Protocol I to the Geneva Conventions as well as under the statute of the International Criminal Court (ICC). Such attacks could constitute grave breaches under the Fourth Geneva Convention in wilfully causing great suffering or serious injury to body or health and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly, and under Protocol I in making the civilian population or individual civilians the object of attack, or launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects.
Such attacks could also give rise to criminal liability under the ICC Statute in intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities, against civilian objects, or intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. 
Britain and Australia, as parties to these conventions, even if not directly participating in the specific attacks, could find their officials liable for war crimes as parties aiding, abetting or assisting the United States.
In addition, the use of certain weapons reportedly being contemplated could also constitute war crimes. For example, the use of non-lethal ‘calmative’ agents, CS gas and pepper spray, which may not always as ‘non-lethal’ as intended as has been seen by the high number of deaths resulting from their use during the Moscow hostage crisis, on civilians, in caves or to take prisoners, could constitute use of ‘poisons or poisoned weapons’ under the ICC statute, and would, even if they worked as intended, breach the Chemical Weapons Convention. 
The use of tactical nuclear weapons, which both the US and UK have declined to rule out, is also likely to constitute a war crime as an indiscriminate attack, and a nuclear attack will inevitably cause excessive loss of life, and injury to civilians or damage to civilian objects.  Specifically under the terms of the ICC Statute, it is a crime to launch an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects, or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.
Finally, the act of planning, preparing, initiating or waging of a war on Iraq without specific lawful authorisation of the UN Security Council under the UN Charter could constitute a crime of aggression.  While the ICC, unlike the Nuremberg tribunal, does not at present have jurisdiction over crimes of aggression, a temporary or ad hoc tribunal could be established or perpetrators could be held liable under national laws.
There are a number of means of recourse for war crimes, including that a case may be brought before the courts of a State where the State has implemented the applicable convention in its legislation, as has Belgium, or that information may be submitted to a State Party which may request that the International Fact Finding Commission initiates an inquiry or a State Party may refer a case to the ICC Prosecutor. 

The Concept of ‘Shock and Awe’
According to CBS network reports,  U.S. plans for the proposed invasion of Iraq include a massive initial attack using tactics described as ”shock and awe”.  Three or four hundred cruise missiles could be launched at Iraq on the first day of the war, more than were fired during the entire first Gulf War. This would be repeated the following day.  An unnamed Pentagon official quoted by CBS stated that ”[t]here will not be a safe place in Baghdad…The sheer size of this has never been seen before, never been contemplated before.” An author of the shock and awe concept, Harlan Ullman, likened the effect to the use of nuclear weapons: ”So that you have this simultaneous effect, rather like the nuclear weapons at Hiroshima, not taking days or weeks but in minutes.” ”You also take the city down. By that I mean you get rid of their power, water. In 2,3,4,5 days they are physically, emotionally and psychologically exhausted”.
In an earlier book, Ullman has stated that:
Theoretically, the magnitude of Shock and Awe Rapid Dominance seeks to impose (in extreme cases) is the non-nuclear equivalent of the impact that the atomic weapons dropped on Hiroshima and Nagasaki had on the Japanese. The Japanese were prepared for suicidal resistance until both nuclear bombs were used. The impact of those weapons was sufficient to transform both the mindset of the average Japanese citizen and the outlook of the leadership through this condition of Shock and Awe. The Japanese simply could not comprehend the destructive power carried by a single airplane. This incomprehension produced a state of awe. 
We believe that, in a parallel manner, revolutionary potential in combining new doctrine and existing technology can produce systems capable of yielding this level of Shock and Awe. In most or many cases, this Shock and Awe may not necessitate imposing the full destruction of either nuclear weapons or advanced conventional technologies but must be underwritten by the ability to do so. …
It will mean the ability to control the environment and to master all levels of an opponent’s activities to affect will, perception, and understanding. This could include means of communication, transportation, food production, water supply, and other aspects of infrastructure as well as the denial of military responses.
According to Command and Control Research Program (CCRP) within the Office of the Assistant Secretary of Defense, 
Massive Bombardment, directed at largely military-strategic targets, is indeed an aspect of applying ”Overwhelming Force,” even though political constraints make this example most unlikely to be repeated in the future. There is also the option of applying massive destruction against purely civilian or ”counter-value” targets such as the firebombing of Tokyo in World War II when unconditionality marks the terms of surrender. It is the cumulative impact of destruction on the endurance and capacity of the adversary that ultimately affects the will to resist that is the central foundation of this example. 
Applying ”massive destruction” against ”purely civilian” targets would clearly constitute a war crime. Other legal consequences which may arise from such an attack are described below.
War Crimes and Humanitarian Laws
Criminal liability for breaches of humanitarian laws and laws of war were codified in the Nuremberg Charter which established the Nuremberg Tribunal in 1945 and in the 1949 Geneva Conventions, particularly in this respect the Fourth Convention (GC IV) and then in 1977 in the additional Protocols, particularly Protocol I.  Much later, the statute for the International Criminal Court (ICC)  was agreed in 1998, which sets out crimes against humanity and war crimes.
War Crimes Under the ICC
The United States signed but later refused to ratify and in fact ‘unsigned’ the ICC Statute. Nevertheless, the United Kingdom has signed and ratified the ICC Statute and is an enthusiastic supporter of the Court. Australia has also ratified the Statute.
The ICC can have jurisdiction over nationals of a State party which has accepted jurisdiction (such as would be the case with a UK national) or where the State party on the territory of which the conduct in question occurred has accepted jurisdiction. The ICC looks first to domestic States to prosecute, so may not initiate proceedings where a State is willing and able genuinely to carry out an investigation or prosecution.
There is a lengthy list of crimes against humanity listed in Article 7 and war crimes in Article 8 of the ICC Statute. Article 8(2)(a) lists a number of acts constituting grave breaches of the Geneva Conventions of 12 August 1949. Article 8(2)(b) lists a number of acts which are other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law.
They include:
(i)	Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
 (ii)	Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
(iv)	Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
(v)	Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;
(xvii) Employing poison or poisoned weapon.
Humanitarian Laws Under the Geneva Conventions
Various categories of protected persons are protected by international humanitarian law. The civilian population is protected by the Fourth Geneva Convention and Protocol I. Civilians may not be the object of attack, must be able to receive all necessary relief, and are protected by the fundamental guarantees. Civilians in occupied territories are protected. Nationals of a neutral state who find themselves in the territory of a belligerent State, as well as nationals of a cobelligerent state (an ally of the belligerent state) are not protected so long as their state of nationality maintains normal diplomatic representation with the state in which they find themselves. 
The basic rule of international humanitarian law as provided in Protocol I is that ”[i]n order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”  Protocol I specifically protects the civilian population from attack. It provides that the civilian population and individual civilians enjoy general protection against dangers arising from military operations. 
The civilian population as such, as well as individual civilians, may not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. 
Article 51 also prohibits indiscriminate attacks, which are defined as: 
(a) Those which are not directed at a specific military objective; 
(b) Those which employ a method or means of combat which cannot be directed at a specific military objective; or 
(c) Those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction. 
The following types of attacks are considered as indiscriminate: 
(a) An attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and 
(b) An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. 
Civilian objects are specifically protected in Article 52, which provides that civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives which are limited to ”those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military of advantage.” 
Objects indispensable to the survival of the civilian population are protected in Article 54. Starvation of civilians as a method of warfare is prohibited. It is also prohibited to attack, destroy, remove or render useless ”objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.” 
Thus attacks on drinking water installations and supplies as part of a ‘shock and awe’ attack could likely breach international humanitarian laws. 
War Crimes Under the Geneva Conventions and Protocol I
The Geneva Conventions specify a number of grave breaches of the laws of armed conflict, which are war crimes. The principle of universal jurisdiction applies to grave breaches, and the Parties to GC IV undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the Convention, as well are under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. Parties may also hand such persons over for trial to another Parties concerned, provided such Party has made out a prima facie case. 
GC IV lists in Article 147 acts which constitute grave breaches, if committed against persons or property protected by the Convention. Protocol I, to which 161 States, but not the United States or Iraq, are party, expands and details grave breaches. Acts described as grave breaches in the Conventions are grave breaches of the Protocol if committed against persons in the power of an adverse Party protected by Articles 44, 45 and 73 of the Protocol.
Additionally, a number of new grave breaches are listed in Protocol I, when committed wilfully, in violation of the relevant provisions of the Protocol, and causing death or serious injury to body or health.
There are a number of acts which do not necessarily result in death or serious injury to body or health when committed wilfully and in violation of the Conventions of the Protocol; including unjustifiable delay in the repatriation of prisoners of war or civilians and depriving a protected person of the rights of fair and regular trial. 
Shock and Awe as War Crimes 
Shock and Awe Under the Geneva Conventions and Protocol I
Geneva Convention 
Civilians are protected persons under the Fourth Geneva Convention and ‘shock and awe’ attacks could constitute grave breaches under GCIV in wilfully causing great suffering or serious injury to body or health and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
Protocol I
Protocol I to the Geneva Conventions is clear: ”The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. The object of ‘shock and awe’ as a means of undermining morale by instilling terror among the civilian population is thus specifically prohibited.
Indiscriminate attacks are specifically prohibited. An attack or means of attack under the ‘shock and awe’ doctrine could constitute an prohibited indiscriminate attack which is defined as one which is not directed at a specific military objective under Article 51(4)(a) or which is a method or means of combat which cannot be directed at a specific military objective under Article 51(4)(b). The entire strategy could be indiscriminate in that it employs a method or means of combat the effects of which cannot be limited as required by the First Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction, contrary to Article 51(4)(c). 
Article 52 (2) defines military objectives as ”those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”
The use of ‘shock and awe’ tactics could involve war crimes under Protocol I under Article 85(3) including:
(a) Making the civilian population or individual civilians the object of attack;
(b) Launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 (a) (iii); 
An attack on Baghdad so that there ‘will not be a safe place in Baghdad would likely constitute a breach of paragraph (b). In addition, an attack getting ‘rid of their power, water’ as well as taking ‘the city down’ could well constitute an indiscriminate attack affecting the civilian population or civilian objects. An attack on a power or water installation could constitute an attack ‘which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’ under Article 51(5)(b) of Protocol I.
Human Rights Watch have also urged that electrical generation facilities must not be destroyed and observed that attacks on electrical generation facilities during the 1991 Gulf War ”crippled basic civilian services, including hospital-based medical care, and shut down water-distribution, water-purification, and sewage-treatment plants. As a result, the most vulnerable members of the population, young children and adults requiring medical attention, suffered injury and death from the lack of potable water and poor medical treatment.”
(c) Launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 (a) (iii). 
An attack on a dam, for instance, could breach paragraph (c).
(d) Making non-defended localities and demilitarized zones the object of attack. 
While neither the United States nor Iraq are parties to Protocol I, they are bound by ‘generally recognized principles and rules of international law’ and acts that contravene the provisions of the Protocol may be held to breach such generally recognized principles and rules of international law, particularly as some 85% of States have ratified Protocol I, and as the provisions in question codify the protection of civilian populations provided in the Fourth Geneva Convention.  
The Conventions to a large extent are a part of customary international law. The International Court of Justice (ICJ) in the Nicaragua case noted that ”there is an obligation ... in the terms of Article I of the Geneva Conventions, to ‘respect’ the Conventions and even ‘to ensure respect’ for them ‘in all circumstances’, since such an obligation does not derive only from the Conventions themselves, but from the general principles of humanitarian law to which the Conventions merely give specific expression” (I.C.J. Reports 1986, para 220, p. 114). In its Advisory Opinion on the legality of the threat or use of nuclear weapons, the Court noted that ”[i]n particular, the Court recalls that all States are bound by those rules in Additional Protocol I which, when adopted, were merely the expression of the pre-existing customary law, such as the Martens Clause, reaffirmed in the first article of Additional Protocol I.” 
Thus if a State acts in disregard of the provisions of Protocol I and the Geneva Conventions, they risk their officials being held liable for war crimes and send a message to the opponent that they do not consider they are bound by the provisions, thus risking similar contraventions by the opponent. Note that both Iraq and the United States are party to the Geneva Conventions. 
War Crimes Under the International Criminal Court
‘Shock and awe’ tactics as described could constitute war crimes coming under the jurisdiction of the International Criminal Court (ICC) including:
(i)	Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
(ii)	Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
(iv)	Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
(v)	Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; 
Launching an attack as described so ”[t]here will not be a safe place in Baghdad” and an attack where forces ”take the city down. By that I mean you get rid of their power, water. In 2,3,4,5 days they are physically, emotionally and psychologically exhausted” could well breach one or more of these provisions, and particularly paragraphs (ii) and (iv). 
(xvii) Employing poison or poisoned weapons 
No ‘shock and awe’ tactics discussed specifically imply the use of poison or poisoned weapons, but weapons used may involve depleted uranium, so-called ‘calmative’ weapons, ‘E-bombs’ and nuclear weapons so these now will be addressed.
The Legality of Other Contemplated Weapons 
The Likely Use of Depleted Uranium 
The Practical Effects of Depleted Uranium (DU) on the Battlefield
Depleted uranium (DU) is used as armour piercing due to its density, high melting point, high tensile strength and pyrophoric properties. According to one study,  the principal U.S. munitions containing DU are 105- and 120-mm tank-fired rounds, which contain about 4 and 5 kilograms of DU respectively, and the 30-mm rounds fired by the Gatling gun mounted on the A-10 aircraft, which contain about 0.3 kilograms of DU each. 
Depleted uranium, a heavy metal, is radioactive and also has a chemical toxicity that, at least in the case of oral intake, is significantly more important than the radiological effects.  While the primary risk from radiation is an increased risk in cancer, uranium as a heavy metal with a chemotoxic potential concentrates in the kidney and in the bone. Uranium in the kidney can lead to renal failure. 
The major risk is DU dust, generated when DU ammunition hits hard targets. Inhalation may lead to protracted exposure of the lung and other organs. Soldiers in vehicles struck by DU munitions could receive doses in excess of U.S. occupational radiation or toxicity standards.” Inside a struck vessel the possibility of kidney damage or other toxic effects would be a concern.  In addition to inhaled aerosols, individuals in struck vehicles may also retain fragments of uranium in their bodies, which could deliver a high radiation dose. A Royal Society report into DU found that ”for soldiers in struck vehicles the concentrations could well reach a few micrograms per gram, leading to dysfunction detectable in urine tests.” In the case of instantaneous inhalation of DU dust after an attack, ”the dust concentration will be very high and, if the person survives the attack but is unprotected, there is a great risk that they will have received a very high exposure, possibly leading to chemical toxic effects.” The report concluded that ”[d]uring and immediately after an attack at which depleted uranium has been used, some people in the immediate vicinity may have been heavily exposed to depleted uranium by inhalation.” 
Additionally, entry into a struck vessel subsequent to the attack could result in exposure. In addition to inhalation, ingestion of contaminated soil, such as through hand contamination, or through contamination of drinking water, aerosol caused upon impact of an armoured vehicle, for instance, and wound contamination from fragments other pathways.
Thus quite apart from the question of exposure following use in combat, there are indications that DU when used in a combat situation could result in potentially toxic exposure to uranium and an increased cancer risk.
The Legal Effects of The Use of Depleted Uranium (DU) on the Battlefield
Thus the question arises whether DU may constitute ‘poison or poisoned weapons’ under international law, including the ICC Statute and other instruments. The 1925 Geneva Protocol addresses ”asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices” and the 1907 Hague Regulations forbid combatants in wording almost identical to the ICC Statute ”[t]o employ poison or poisoned weapons”. A poisoned arrow for instance would be a ‘poisoned weapon’. DU in its toxic effects could in some ways be analogous to a poisoned arrow. 
The ICJ in its Advisory Opinion however adopted a restrictive definition, and observed that that the Hague Regulations do not define what is to be understood by ‘poison or poisoned weapons’ and that different interpretations exist on the issue, and that the 1925 Protocol does not specify the meaning to be given to the term ‘analogous materials or devices’. The Court stated that ”[t]he terms have been understood, in the practice of States, in their ordinary sense as covering weapons whose prime, or even exclusive, effect is to poison or asphyxiate. This practice is clear, and the parties to those instruments have not treated them as referring to nuclear weapons.”
While that finding may give some comfort to States which wish to use DU ammunition, that practice may not be entirely immune from the ICC definition. The Court was specifically addressing nuclear weapons, and it may be dangerous to rely on its finding with respect to DU weapons. 
Bearing in mind that the 1925 Geneva Protocol addresses ”asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices,” it is difficult to see how this definition is thus limited to weapons whose prime, or even exclusive, effect is to poison or asphyxiate. Any ‘other gas’ is in fact covered on a plain reading of the Protocol, as is an liquid, material or device analogous to a gas. These substances have in common an ability to harm combatants other than through kinetic energy (such as a bullet or a bomb). A DU projectile can be said to have this quality. A treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. If the primary effects of a weapon are, as with DU, to penetrate armour, if a secondary effect of the weapon is to poison targeted combatants once the defences are penetrated, it is difficult to exclude that subsequent toxic effects may constitute the weapon as a poison weapon.
Thus there seems a risk that depleted uranium ammunition could be found to constitute a ‘poisoned weapon’, and thus give rise to criminal liability.
Also relevant is the Martens Clause, which provides that ”[i]n cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.” The ICJ in its Advisory Opinion referred to the Martens Clause as something ”which has proved to be an effective means of addressing the rapid evolution of military technology” and that the Court pointed to the Martens Clause, ”whose continuing existence and applicability is not to be doubted, as an affirmation that the principles and rules of humanitarian law apply to nuclear weapons.” Judge Shahabuddeen more specifically observed in his dissenting opinion that ”the Martens Clause provided authority for treating the principles of humanity and the dictates of public conscience as principles of international law, leaving the precise content of the standard implied by these principles of international law to be ascertained in the light of changing conditions, inclusive of changes in the means and methods of warfare and the outlook and tolerance levels of the international community. The principles would remain constant, but their practical effect would vary from time to time: they could justify a method of warfare in one age and prohibit it in another.” Thus even if DU were not to fall under the 1925 Geneva Protocol or 1907 Hague Regulations as an analogous device or as a poisoned weapon respectively, the use could still constitute a breach of humanitarian law.
The Contemplated Use of Chemical Weapons
It has been reported that the US Secretary of Defence, Donald Rumsfeld, has revealed that American forces are planning to use ”non-lethal” biochemical weapons described as ‘calmative’ weapons, on Iraqi civilians, in cave systems or to take prisoners. The Secretary appears to be aware that these are banned by the CWC but he reportedly told the House Armed Services Committee on February 5 that Pentagon officials have attempted to craft simple rules of engagement for combat troops in Iraq that would allow them to use non-lethal weapons to incapacitate civilians, stating that ”[w]e are trying to find ways that non-lethal agents could be used within the law, within the treaty.” There are indications that, as well as calmative agents, CS gas and pepper spray may be used.
The use of such agents would breach the Chemical Weapons Convention. The CWC defines ‘toxic chemical’ as any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. Thus chemical weapons which cause temporary incapacitation are clearly prohibited in Article I, which provides that each State Party to the Convention undertakes never under any circumstances to use chemical weapons, to engage in any military preparations to use chemical weapons. 
These could also constitute ‘poison or poisoned weapons’ under the ICC statute. As discussed earlier, the 1925 Geneva Protocol condemned the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices following World War I. So-called ‘calmatives’ are certainly an ‘other gas’ and thus fall within the Geneva Protocol. They could also constitute ‘poison’ under the ICC. ‘Poison’ has been defined as ‘a substance which, on ingestion, inhalation, absorption, application, injection, or development within the body, in relatively small amount, may cause structural damage or functional disturbance.’ There seems little doubt that calmatives may cause functional disturbance, and as seen in Moscow, when some 100 hostages died, can be lethal. 
The Possible use of Nuclear Weapons
There are reports that the United States may use earth penetrating nuclear weapons or ‘bunker busters’ in Iraq and defense analyst William M. Arkin has reported a decision to examine possible roles for nuclear weapons in any war with Iraq. Donald Rumsfeld in testimony to the Senate Armed Services Committee did not rule out nuclear weapons as an option for responding to attacks from weapons of mass destruction, and White House Chief of Staff Andrew Card has stated that ”should Saddam Hussein have any thought that he would use a weapon of mass destruction, he should anticipate that the United States will use whatever means necessary to protect us and the world from a holocaust.”  The United Kingdom has similarly declined to rule out the use of nuclear weapons.
A ‘bunker busting’ nuclear weapon would have to penetrate 230ft deep before exploding to avoid widespread contamination from an intense and deadly radioactive fallout. The ICJ  in its Advisory Opinion on the legality of the threat or use of nuclear weapons held that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law.  The use of nuclear weapons would be illegal on a number of grounds, including that it would be indiscriminate in its effects, disproportionate in that the effects would be of an order of magnitude greater than any attack predicating the nuclear response and  unnecessary, in the sense that conventional weapons are available.  The use would also contravene assurances of non-use against non-nuclear States made by the United States in the Nuclear Nonproliferation Treaty. Nor would the use fall into the one category on which the ICJ could not reach a conclusion, being whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.  It is unlikely to be the case that the very survival of the United States or the United Kingdom will be at stake.
The use of tactical nuclear weapons is likely to constitute a war crime in a number of respects: it would be indiscriminate, in that in its force and radioactive fallout could constitute an indiscriminate attack with the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects. 
The use could give rise to liability for war crimes under the ICC in that it could constitute intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.
Other Weapons 
The possible use of other weapons must be assessed in light of criteria discussed in this paper. For instance, there are reports that an ‘E-Bomb’ may be used, which directs a high velocity electro-magnetic pulse at its target with the aim of producing ‘shock and awe’. The weapon can reportedly short-circuit electrical connections, knock out lights and telephones and crash computers. They could also kill civilians with heart pacemakers, cripple hospital equipment and put emergency services out of action. The use could thus constitute:
•	extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly, contrary to Article 147 of the Geneva Convention;  
•	an indiscriminate attack using a method or means of combat the effects of which cannot be limited as required by the Protocol I, contrary to Article 51(4)(c) of that Protocol; 
•	an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, contrary to Article 85(3)(a) of Protocol I;
•	an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects, contrary to Article 85(3)(c) of Protocol I; and
•	an attacks against civilian objects, that is, objects which are not military objectives, contrary to Article 8(2)(b)(ii) of the ICC Statute
•	an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated; contrary to Article 8(2)(b)(iv) of the ICC Statute.

Anti-personnel mines are indiscriminate weapons and can incapacitate and kill civilians and military forces alike. Cluster bombs likewise can be indiscriminate in failures of accuracy in targeting and failure to explode on impact, thus causing casualties other than those targeted.
Liability for Acts Constituting War Crimes by United Kingdom and Australian Officials
If acts are carried out by a coalition involving the United States which may constitute war crimes, even if UK and Austrlaian forces are not primarily involved, UK and Australian officials could be liable under the provisions of Article 25 of the ICC, which provides for liability for a person who solicits or induces the commission of a crime, including if the crime is attempted, and for persons who aid, abet, or assist including providing the means for its commission. Liability is also attached for any person who in any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Criminal liability can also attach for attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. It appears that UK officials have been aware of the ‘shock and awe’ doctrine as early as 1996, when Baroness Walker of Chelsea confirmed that the Ministry of Defence officials attended a discussion on ‘shock and awe’ at the Royal United Services Institution.
Crimes Against Peace and Crimes of Aggression
Crimes against peace were described in the statute of the Nuremberg tribunal as those aimed at the planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties.  The ICC in theory does potentially have jurisdiction over crimes of aggression, but the Court can only exercise jurisdiction over the crime of aggression once a provision is adopted defining the crime and setting out the conditions under which the Court shall exercise jurisdiction.  As a UK naval legal adviser has noted, a temporary tribunal could be established to address the legality of a State’s decision to use force against another State. In addition, perpetrators could be tried by domestic courts having jurisdiction where crimes of aggression are prohibited.
While States have the responsibility to search for and prosecute war criminals, there is an International Fact Finding Commission created under PI Article 90. This is a permanent body in charge of investigating grave breaches and serious violations of humanitarian law. Sixty countries, including the United Kingdom, have recognized its competence, but Iraq and the United States have not.  Nonetheless, the Commission can enquire into any facts alleged to be a grave breach as defined in the Conventions and Protocol I or other serious violation of the Conventions or of the Protocol.
Recourse for War Crimes 
There are a number of means of recourse for war crimes:
(1) A case could be brought before a foreign national court under the principle of universal jurisdiction. First it must be established that the State has implemented the applicable convention PI in its legislation, as many have not. Belgium for instance has legislation which grants Belgian courts authority to prosecute persons accused of crimes against humanity or war crimes regardless of where the crimes took place or whether the accused or the victims are Belgian nationals. The victim has the right to file a complaint directly before an investigating judge.
(2) Information can be submitted to a State Party which may request that the International Fact Finding Commission initiates an inquiry
(3) A State Party could to refer a case to the ICC Prosecutor. Note that the Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.